Clayman Institute report highlights misuse of NDAs, need to critically examine their impact on workplace misconduct cases

On July 16, 2024, The Clayman Institute for Gender Research and advocacy group Lift Our Voices released a striking report exposing the widespread misuse of non-disclosure agreements (NDAs) in workplace misconduct cases. The report, drawing from accounts of 23 employees, reveals how NDAs, initially intended to safeguard business confidentiality, are increasingly being used to silence employees, especially in cases of sexual harassment and discrimination. This misuse of NDAs has significant implications for employee rights and workplace transparency, as these agreements often prevent survivors from speaking out and seeking justice. The report reached wider audiences through coverage in Forbes magazine. 

The report was authored by Ariel Lam Chan, Bethany J. Nichols, Alison Dahl Crossley, and Adrian Daub, a team of Clayman Institute researchers and staff members. The researchers showed that NDAs often contained vague, overly broad language, leaving employees confused and uncertain about their rights. Companies exploited this ambiguity to pressure employees into settlements, effectively silencing them while shielding perpetrators. The impact of NDAs extended beyond the workplace, affecting employees' personal lives. By fostering a culture of secrecy, NDAs hinder accountability for perpetrators and impede transparency in cases of sexual harassment and discrimination.

One research participant’s testimony poignantly illustrates the chilling effect of NDAs: “...I wanted to speak out. And I was reminded—I signed an NDA and not to speak, not to disclose what happened…. I was already down. I was already devastated.” This statement underscores how NDAs can stifle employees' efforts to seek redress or simply voice their experiences.

This project was inspired by the broader #MeToo movement and high-profile cases like the prosecution of Harvey Weinstein, where survivors’ stories came together to unveil the scale of abuse. The research delves into how NDAs perpetuate silence around gender-based violence. The study also questions how everyday workplace practices shield perpetrators and silence victims, particularly women. 

The research team at the Clayman Institute engaged in an intensive outreach process in order to speak with individuals whose lives have been impacted by NDAs. The team partnered with community organizations, tapped into professional networks, engaged in social outreach, and distributed flyers to reach individuals unaffiliated with institutions or skeptical of them. Through qualitative interviews conducted by the research team, participants shared their stories of signing NDAs, the conditions under which they agreed to these terms, and the profound impacts on their personal and professional lives. 

The report underscores the Clayman Institute's commitment to interdisciplinary research, research mentorship, and community engagement. The lead author on the report was Ariel Lam Chan, research assistant at the Clayman Institute and a doctoral student in sociology. The project was also supported by an interdisciplinary team of undergraduate research assistants, highlighting the Institute’s dedication to mentoring and training student researchers. The team also collaborated with Lift Our Voices, founded by Advisory Council member Gretchen Carlson, to facilitate participant recruitment, enhance the impact of the research, and gain real-world insights. The fruitful collaboration with Lift Our Voices underscored the importance of working with community partners to conduct relevant  and actionable research.

The research from Chan, Nichols, Crossley, and Daub calls for broader discussions and evaluations of NDAs. The stories of participants reveal a pressing need for further research and better data to document survivors' experiences. Moving forward, the Clayman Institute aims to engage with more employees affected by NDAs and publish its findings in academic journals. The goal is to empower employees, companies, policymakers, and activists to make informed decisions on harassment and discrimination, with a commitment to creating environments where all voices are heard and where NDAs and other silencing mechanisms are critically examined to ensure workplace transparency and fairness.